GDI Statement on Venice Commission opinion on the draft amendments to the Organic Law on Courts of General Jurisdiction of Georgia

On 11 March 2013 the Venice Commission published its opinion on the draft amendments to the Organic Law on Courts of General Jurisdiction of Georgia. The opinion deals with such issues as reform of the High Council of Justice and coverage of court proceedings by media.

The document has become subject of contradictory interpretations by representatives of legislative, executive and judicial branches of power, politicians and media. Divergent opinions have been expressed in respect of the Venice Commission’s assessment of the amendments dealing with early termination of the mandate of the High Judicial Council members and specific limitations to be imposed on holders of particular positions in the light of the new method of composition of the High Council.

First and foremost, it is notable that a significant part of the amendments in question was assessed positively by the Commission. In particular, the opinion notes that “the amendments to the Organic Law of Georgia on the Courts of General Jurisdiction improve many provisions of the Organic Law and will bring this Law closer to European standards.” The Commission is of the opinion that a new method of composition of the High Judicial Council represents progress for the independence of the Council. At the same time the Commission expressed a number of important opinions and remarks regarding particular aspects of this rule. Notably, according to the draft amendments, the Parliament of Georgia by a majority of its members elects 6 members in the High Council of Justice. The Venice Commission is of the opinion that the elections from the parliamentary component should be by a two-thirds qualified majority or by some proportional method which ensures that the opposition has an influence on the composition of the Council. The Commission considers that with a view to avoiding a possible deadlock a specific mechanism can be introduced. However, this mechanism should not act as a disincentive to reaching agreement on the basis of a qualified majority. Another remark is made with respect to the provision limiting the possibility of being elected in the Council for the chairmen of courts and other high level judicial officials. The Commission is of the opinion that if the Council is to represent the judiciary as a whole then it seems wrong to exclude any member of the judiciary from the possibility of being elected. Nevertheless, being cognizant of the concerns expressed by interlocutors, the Commission considers that a possibility of limiting the maximum number of chairmen who could sit on the Council could be envisaged.

As for transitional provisions, according to the draft amendments the authority of the members of the High Council of Justice, except for the chairman of the Supreme Court, is terminated upon enactment of the Law. The Commission considers that this provision should be deleted from the draft law. “An important function of judicial councils is to shield judges from political influence. For this reason, it would be inconsistent to allow for a complete renewal of the composition of a judicial council following parliamentary elections,” – is noted in the opinion. The Commission supports continuity in membership of the High Judicial Council and believes that the Parliament should refrain from adopting measures which would jeopardize this principle. “Removing all members of the Council prematurely would set a precedent whereby any incoming government or any new Parliament, which did not approve of either the composition or the membership of the Council could terminate its existence early and replace it with a new Council.”

Hence, the Venice Commission recommends that the members of the Council complete their mandate and the article which provides for the pre-term termination of the mandate of the current members is deleted from the transitional provisions. However, bearing in mind the arguments of the proponents of the draft amendments, the Commission deems it possible that transitory measures be introduced with a view to bringing the current Council closer to the future method of composition. The examples of such measures could be envisaging that the law requires the incumbent chairmen of courts to resign as chair in order to remain on the Judicial Council and putting in place a procedure for the Judicial Conference to ratify the appointments made by the Administrative Committee.

Having regard to the role played by the Venice Commission in the improvement of Georgian legislation over the years, Georgian Democracy Initiative (GDI) believes that the Parliament of Georgia shall definitely take into account the important remarks and recommendations made by this authoritative body, as reflected in the aforementioned opinion. This would contribute to ensuring compliance of the planned reform with democratic standards and increasing legitimacy of the initiative at hand.
Bearing in mind significant interest attached to this issue by Georgian society, GDI would like to make the unofficial Georgian translation of the aforementioned opinion available to the public.